N.Y. Gov. Cuomo Announces New Directive Requiring Insurers to Cover Infertility Services for New Yorkers Regardless of Sexual Orientation or Gender Identity

ALBANY, New York, Feb. 24 -- Gov. Andrew Cuomo, D-New York, issued the following news release on Feb. 23, 2021:

Governor Andrew M. Cuomo today announced the Department of Financial Services has issued guidance requiring New York health insurers to cover fertility services for all New Yorkers regardless of sexual orientation or gender identity. Under this new guidance, health insurers are now required to provide immediate coverage of services for the diagnosis and treatment of infertility for consumers covered under individual, small group, and large group health insurance policies and contracts who are unable to conceive due to their sexual orientation or gender identity. This guidance - first proposed in the Governor's 2021 State of the State as a key component of the Women's Agenda - builds on New York's nation-leading actions to protect the rights of all New Yorkers.

"Every New Yorker regardless of sexual orientation or gender identify should have the same opportunity to conceive a family, and we must do everything we can to ensure cost is not a barrier," Governor Cuomo said. "In New York State, we believe love is what makes a family and that the law must work for everyone. This action will go a long way toward achieving that goal."

This circular letter builds on a number of nation-leading actions to protect the rights of both women and LGBTQ New Yorkers, including the required coverage of in-vitro fertilization services by insurers providing large group coverage, the enactment of Marriage Equality Act, GENDA, legalizing gestational surrogacy, banning conversion therapy and the gay and trans panic defense and, most recently, repealing the 'Walking While Trans' ban.

Secretary to the Governor and Chair of the Council on Women and Girls Melissa DeRosa said, "Starting a family can be a personal and emotional challenge, especially for LGBTQ couples. With this action we are taking an important step forward toward family equity as we continue working to ensure all New Yorkers have full access to reproductive health services."

Superintendent of New York State Department of Financial Services Linda A. Lacewell said, "Today we are taking another important step to support family equality in New York. Requiring New York insurers to provide day-one coverage of infertility services to individuals who are unable to conceive due to their sexual orientation or gender identity is necessary to prevent discrimination against members of the LGBTQ community."

Current Insurance Law requires insurers to cover infertility services. However, before qualifying for coverage, individuals who are unable to conceive due to their sexual orientation or gender identity must nonetheless sometimes pay 6 or 12 months of out-of-pocket expenses for infertility treatments such as testing and intrauterine insemination to demonstrate infertility.

The circular letter issued today directs insurers to provide immediate coverage for basic infertility treatments (e.g., intrauterine insemination procedures) that are provided to individuals covered under an insurance policy or contract who are unable to conceive due to their sexual orientation or gender identity in order to prevent discrimination.

* * *

TO:

All Insurers Authorized to Write Accident and Health Insurance in New York State, Article 43 Corporations, Health Maintenance Organizations, Student Health Plans Certified Pursuant to Insurance Law Sec. 1124, Municipal Cooperative Health Benefit Plans, and Prepaid Health Services

RE:

Health Insurance Coverage of Infertility Treatments Regardless of Sexual Orientation or Gender Identity

STATUTORY REFERENCES: N.Y. Insurance Law Sec.Sec. 3216(l), 3221(h), 3221(k)(6), 4303(s), 4303(ll), and 4304(l)

I. Purpose

The purpose of this circular letter is to withdraw Insurance Circular Letter No. 7 (2017) and direct insurers authorized to write accident and health insurance in New York State, Article 43 corporations, health maintenance organizations, student health plans certified pursuant to Insurance Law Sec. 1124, municipal cooperative health benefit plans, and prepaid health services plans that issue coverage subject to Insurance Law Sec.Sec. 3221(k)(6) and 4303(s) (collectively, "issuers") to provide immediate coverage of diagnostic and treatment services, including prescription drugs, for the diagnosis and treatment of infertility ("basic infertility treatments") for individuals who are unable to conceive due to their sexual orientation or gender identity and are covered under individual, small group, and large group health insurance policies and contracts.

II. Discussion

Insurance Law Sec.Sec. 3221(k)(6) and 4303(s) require a policy or contract that provides coverage for hospital care or surgical and medical care to provide coverage for diagnostic and treatment procedures used in the diagnosis and treatment of infertility. These sections of the Insurance Law further require a policy or contract that provides coverage for prescription drugs to cover prescription drugs approved by the federal Food and Drug Administration for use in the diagnosis and treatment of infertility. In addition, diagnostic and treatment procedures used in the diagnosis and treatment of infertility and prescription drugs are covered under comprehensive individual and small group health insurance policies and contracts as part of New York's essential health benefits package as described in Insurance Law Sec.Sec. 3216(l), 3221(h), 4303(ll), and 4304(l).

In 2017, the Department of Financial Services ("Department") issued Circular Letter No. 7, which provided guidance to issuers based on the definition of "infertility" in effect at that time. In 2017, Insurance Law Sec.Sec. 3221(k)(6)(C)(vi) and 4303(s)(3)(F) required issuers to make the determination of infertility in accordance with the standards and guidelines established and adopted by the American College of Obstetricians and Gynecologists and American Society for Reproductive Medicine ("ASRM"). The ASRM description of infertility provided that "[i]nfertility is a disease, defined by the failure to achieve a successful pregnancy after 12 months or more of appropriate, timed unprotected intercourse or therapeutic donor insemination. Earlier evaluation and treatment may be justified based on medical history and physical findings and is warranted after 6 months for women over age 35 years."

However, in 2019, Part L of Chapter 57 ("Part L") added Insurance Law Sec.Sec. 3221(k)(6)(C)(v)(I) and 4303(s)(3)(E)(i) to amend the definition of "infertility" that was set forth in former Insurance Law Sec.Sec. 3221(k)(6)(C)(vi)(I) and 4303(s)(3)(F)(i) to mean "a disease or condition characterized by the incapacity to impregnate another person or to conceive, defined by the failure to establish a clinical pregnancy after twelve months of regular, unprotected sexual intercourse or therapeutic donor insemination, or after six months of regular, unprotected sexual intercourse or therapeutic donor insemination for a female thirty-five years of age or older. Earlier evaluation and treatment may be warranted based on an individual's medical history or physical findings."

Part L also added new Insurance Law Sec.Sec. 3221(k)(6)(C)(viii) and 4303(s)(3)(H) to prohibit an issuer providing coverage for infertility treatments from discriminating based on an individual's expected length of life, present or predicted disability, degree of medical dependency, perceived quality of life, or other health conditions, or based on personal characteristics, including age, sex, sexual orientation, marital status, or gender identity. Part L further added a new Insurance Law Sec.Sec. 3221(k)(6)(C)(vii) and 4303(s)(3)(G) to require large group policies that provide medical, major medical or similar comprehensive-type coverage to cover three cycles of in-vitro fertilization ("IVF") when used in the treatment of infertility. The amendments made by Part L took effect on January 1, 2020 and applied to insurance policies and contracts issued, renewed, modified, altered, or amended on or after January 1, 2020.

Under the Insurance Law, an issuer must provide coverage regardless of sexual orientation, marital status, or gender identity. In addition, since the definition of infertility expressly contemplates coverage for infertility treatment earlier than 12 months, issuers should be mindful that, with respect to some individuals, earlier evaluation and treatment may be justified. It has come to the Department's attention that some issuers may be requiring some individuals to incur costs, due to their sexual orientation or gender identity, that heterosexual individuals do not incur in order to meet the definition of infertility. In particular, some issuers have denied coverage of basic infertility treatments, such as intrauterine insemination procedures, for some individuals who are unable to conceive without such treatment due to their sexual orientation or gender identity. These individuals may incur the high costs of basic infertility treatments for up to 12 months to demonstrate infertility in order to qualify for insurance coverage due to their sexual orientation or gender identity. This results in unfair discrimination for individuals due to their sexual orientation or gender identity, which is prohibited by Insurance Law Sec.Sec. 3221(k)(6)(C)(viii) and 4303(s)(3)(H). Therefore, issuers must provide immediate coverage for basic infertility treatments (e.g., intrauterine insemination procedures) that are provided to individuals covered under an insurance policy or contract who are unable to conceive due to their sexual orientation or gender identity in order to prevent discrimination. Issuers that cover IVF procedures may consider whether basic infertility treatments, such as intrauterine insemination procedures, would be medically appropriate for the individual to attempt prior to covering IVF. This circular letter does not address surrogacy arrangements or require coverage for services that are not otherwise mandated to be covered under the Insurance Law.

III. Conclusion

Issuers are directed to provide immediate health insurance coverage for basic infertility treatments that are provided to individuals covered under an insurance policy or contract who are unable to conceive due to their sexual orientation or gender identity in accordance with the Insurance Law. In addition, Circular Letter No. 7 (2017) is withdrawn.

Please direct any questions regarding this circular letter by email to [email protected].

Very truly yours,

Lisette Johnson

Chief, Health Bureau